Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford Law School. He has served as a special master or court-appointed expert in New York, Connecticut, Maryland and Georgia to draw nonpartisan redistricting plans.
Anyone who teaches or writes about election law has one Supreme Court court case that he or she finds outrageous. For some, it is Shelby County v. Holder, the decision striking down a core provision of the Voting Rights Act. For others, it is Citizens United v. FEC, which struck down regulations of election-related spending by corporations and unions.
If the Supreme Court sides with the appellants who seek to redefine the “one person, one vote” rule so that districts may be drawn only around eligible voters, mine will be Evenwel v. Abbott. The case will not receive the attention of the other two, but it represents all that is wrong with constitutional litigation around election law — in particular, the effort to use the courts to achieve anti-minority outcomes that even the majoritarian political process would not tolerate.
As a preliminary matter, the case offends my sensibilities as a data-obsessed, court-appointed redistricting expert. Evenwel argues that the Constitution requires states to draw voting districts to hold equal numbers of eligible voters rather than equal numbers of people. Most would find that principle unobjectionable enough, until one realizes no national (or even state-specific) list of eligible voters exists.
The United States does not even have an address list for U.S. citizens that might be usable for redistricting, let alone one curated to deal with other ineligible voters such as prisoners, felons or those disenfranchised because of mental disability. The decennial census does not include a citizenship question, as many might be surprised to learn. All the census provides are annual survey results from 2.5 percent of American households and multi-year averages of those surveys, both of which will usually be too stale to be of use by the time redistricting comes around every 10 years.
[Other perspectives: Why Texas is wrong in the ‘one person, one vote’ case]
But the Evenwel case also represents a disturbing attempt to convert a politically contested principle into an unprecedented, rigid and nationally applicable constitutional rule. It would be one thing if the appellants in this case spent their efforts trying to lobby the Texas legislature to conduct a census of Texas citizens and redistrict on that basis. But knowing the political outcry that would result from a tactic rightfully perceived as targeting Latinos, given the neighborhoods likely to lose representation under that principle, the appellants instead want to use the courts — and the Constitution — to eliminate from political consideration any theory of representation other than the one they favor.
One might be tempted to call their argument “conservative” based on the party that would benefit, but there is really nothing conservative about it. Those who believe that courts should hew closely to the original meaning of the Constitution cannot take the appellants’ argument seriously. The clause in the 14th Amendment upon which they hang their argument prevents depriving any “person” — not eligible voter or citizen — of “equal protection of the laws.” The Census Clause, which directs apportionment of seats in Congress, likewise speaks of an “actual enumeration” of persons. Indeed, the poisonous clause that counted slaves as three-fifths of a person for congressional apportionment purposes should tell you all you need to know as to whether the Framers thought that only eligible voters counted for representation.
Their argument also finds no support from those brands of conservatism that respect states’ rights, traditions or judicial restraint. On the contrary, it would require an upending of the traditional way of drawing districts around equal numbers of people, forcing all states and localities to endure the political bloodsport of redistricting in furtherance of a new equal voter principle. And if the notion of “judicial activism” has not yet been drained of all meaning, it certainly would include a decision whose implementation would require the court to fundamentally re-conceive the census.
So what is really behind this radical, and thoroughly unconservative, desire to innovate in an area of constitutional law that no one thought required transformation? The answer is barely concealed in the litigation. The appellants are unhappy with the rise in the non-citizen Latino population in Texas due to immigration and its resulting overrepresentation through the creation of majority-Latino population districts.
As our recent presidential debates have made clear, such unhappiness is widely shared in certain quarters. Not every cause of unhappiness, however, deserves psychological treatment and intervention from the Supreme Court.
In the end, the Evenwel appellants are asking the court to change the constitutional rules of the game just as Latinos are advancing down the field. Almost without exception, states have been drawing districts on the basis of total population rather than voter population since the “one person, one vote” rule was invented. Only now, when the political winners may change, do they claim that the Constitution means something so different that states should not even be permitted to follow time-honored practice.
The court should reject the Evenwel argument because it is unprecedented and destabilizing to the redistricting process. But it should also send a message that this attempt to use the judicial process to change the rules of political competition for an emerging minority will be rejected out of hand.
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